I completely admire King Solomon’s prayer for wisdom. Nowhere is true wisdom more needed than with our city’s insistence that we halt our participation in the opioid litigation and that the local firms hired by the city meet the city’s often-ignored policy of promoting minority-owned businesses.
We should admire and respect our mayor’s resolve in enforcing this policy once and for all. So intent is his commitment to this policy, he convinced the council to rescind a lawfully executed contract the city had done through its attorney after the council had empowered her to act.
The signed contract involved my firm and the Hutchens firm as local counsel – after we were associated by the national firm of McHugh Fuller Law Group and six other national firms that are representing over 200 municipalities in seeking damages from four of the largest opioid distributors in the country. These distributors willfully violated our country’s schedule II law as it relates to controlled substance distribution after their own studies “proved” their premise that opioids are non-addictive when a patient is in pain.
This group has successfully won the first suit in West Virginia, and they are in good standing with the court that presided over that trial and is now in charge of the next round of litigation. In other words, with this firm, we are in the room with the decision-makers and with the court that will decide the merits of the case.
It is essentially a front row seat to the mediation settlement and our trial of this litigation.
The move to rescind this contract to promote Fayetteville’s ignored policy regarding minority-owned businesses, albeit a noble one, is a dangerous move. In doing so, not only are we not in the room, we are not in the suit itself. Given the current posture of the situation, neither the county nor the city has any designs to act promptly even though the judge in the case has issued an edict saying he intends to expedite the signup period and begin settlement negotiations as soon as possible.
My fear is that this delay will cause Fayetteville and Cumberland County to miss out on a potential eight-figure recovery, which we sorely need to augment our depleted budget. There is a Latin phrase used in the law, “Vigilantilous et non dormientibus jura subvenunt.” It means, “The law assists those that are vigilant with their rights and not those who sleep thereupon.”
My fear is well-founded, as this judge has made it clear that the train is about to leave the station. Thus, to delay signing up, we take a substantial risk of being left out of the chance to receive a substantial recovery. As the old saying goes, “The road to hell is paved with good intentions.”
How did we get to this point? In October 2017, I was approached by a group of well-respected North Carolina attorneys who were hired by the six other national firms. Their job was to act as local counsel and to promptly engage as many North Carolina counties and larger municipalities as possible. This was because the court had recently ruled in West Virginia that the four major distributors were, in fact, responsible for the substantial uptick in addiction to opioids. The ruling and verdict opened the door for counties and cities to participate in recovering monies for the strain on services the opioid addiction epidemic has placed upon them.
The litigation is similar to the tobacco litigation of the ’80s and ’90s and is based on sound fact, legal authority and precedent. It was stressed to me that time was a rare commodity and the court was going to allow a relatively short time to sign up those entities that were damaged by this plague.
Toward that end, the group wanted Cumberland County and Fayetteville enrolled and asked if I would set up a meeting with the county officials, including the county manager, the director of the health department and lead counsel. I was glad to do this, and in late October of 2017, one of the lead lawyers in the case met with myself, the director of the health department, the county manager and several other top officials.
By all accounts, all agreed Cumberland County and the city have a substantial need to be involved in the case for many reasons.
1. Cumberland County is in the top 20 in the nation in opioid addictions.
2. The tobacco litigation has created a viable legal theory to craft a very winnable case. In fact, the case has been won in West Virginia.
3. Our county and city resources have been stretched to their maximum in no short measure due to the opioid plague. Consider 85 percent of our incarcerated population is in jail due to addiction.
4. To be reimbursed by those who helped cause this crisis is only fair. They caused the harm. They should help fix it.
Further, the evidence is overwhelming that despite knowing this addictive quality, they perpetuated a fraud on medical personnel and the public that “one cannot become addicted to opioids while in true pain.” Not only is it very possible to become addicted to opioids while in pain, but a person must with each succeeding dose take more of the drug just to reach the same pain reduction threshold. The strain on our hospitals, mental health professionals and law enforcement is extremely burdensome.
We left the meeting fully believing we had everyone’s support and that our county and city were going to rapidly take steps to get in the mix of the many cities and counties that have signed up to be involved in the case. Despite our best efforts to date, we are still on the outside looking in.
My deepest fear is that our effort to honor a very noble and much-needed policy will delay us to the point it costs us a seat at the table on this important litigation.
The solution: I believe we have a two-pronged approach that, if followed, can enforce a well-intended policy and still allow us to be seated at the table. But it requires deliberate and fast action on behalf of the county and the city. First, longterm, our businesses and firms doing business with the city and county should make every effort to reflect our community. We are stronger united. Toward that end, our firm is committed to honoring the mayor’s edict and has a stated goal that our personnel mirror our community. We have lawyers who are Asian-American, Hispanic- American, African-American and both male and female. Our staff has four Hispanic-Americans who are bilingual. I can honestly say I have never enjoyed a group of wonderful colleagues more.
But we are not 51 percent minority-owned. Therefore, do we comply with this policy or not? Frankly, it matters not. We certainly comply with a track record of success, and our dream is that we follow our mayor’s lead and show talented, committed diversity works.
Second, let’s select three firms to serve as local counsel. Let’s honor our previous commitment and add a third majority minority-owned firm to help with the litigation. But let’s do so promptly.
So, let’s open the doors of opportunity and promptly select firms to shepherd our community into this unique and complex litigation. As Mark Twain stated, “It’s never wrong to do the right thing.” But let’s make sure the road less traveled leads to prosperity and not despair. In pursuing equal representation for minorities, let’s not miss out on an equally important opportunity. We have the chance to reimburse our community for the monies expended and the misery caused by the distributors pushing pills onto a public and a medical community who were not quite ready to fully understand the ramifications of such a policy.
If our city and county officials will act deliberately and quickly, we can have both a meaningful policy of diversity in hiring local firms and be involved in the opioid litigation. However, if we delay and debate this issue ad infinitum, we could very well lose a seat at the table. It is time to put aside any disagreements on this issue and act in the best interest of the citizens of this community.
Toward that end, my firm stands ready, willing and able to partner with any other firm that the city chooses to have us partner with. I wish the city and the county the best in their efforts in weighing these two competing policies in hopes they can have both policies succeed at the same time.